Defensive Politics

On Thursday afternoon, May 26, the House Democrats were almost evenly split on passage of the National Defense Authorization Act (NDAA), the large piece of legislation that contains the military’s budget priorities – as well as three Republican amendments opposed by LGBT advocates. A slim majority of Democrats voted for the bill, however, including Minority Leader Nancy Pelosi (D-Calif.).

Pelosi

Among the 90 Democrats and six Republicans to vote against the bill, though, were all four out gay members of Congress: Reps. Barney Frank (D-Mass.), Tammy Baldwin (D-Wisc.), Jared Polis (D-Colo.) and David Cicilline (D-R.I.).

The defense bill often is considered a “must-pass” bill, but one need only look to a 2010 vote when 160 Republicans – all but nine voting on the bill – voted against the NDAA, in large part because of the inclusion of the amendment offered by then-Rep. Patrick Murphy (D-Pa.) aimed at repealing “Don’t Ask, Don’t Tell.”

This year, however, 95 Democrats voted for the bill – despite the inclusion of an amendment aimed at delaying the repeal of DADT and two amendments reaffirming or expanding the Defense of Marriage Act. Aside from Pelosi, House Minority Whip Steny Hoyer (D-Md.) and a leading DADT repeal advocate, Rep. Susan Davis (D-Calif.), were among the members voting for the bill.

The House members did so, moreover, following a strategic decision made by LGBT organizations not to lobby or otherwise attempt to get lawmakers to vote no on the bill as the organizations believe the provisions can more easily be removed in the Senate or subsequent conference committee.

Defending those 95 Democratic “yes” votes, Pelosi spokesman Drew Hammill told Metro Weekly via email, ”The vote on NDAA was not about one provision in the bill, and [the DADT amendment] was not specifically subjected to a floor vote.”

The DADT-related amendment, proposed in the House Armed Services Committee by Rep. Duncan Hunter (R-Calif.), expands the required certification process for repeal – which already includes the president, defense secretary and chairman of the Joint Chiefs of Staff – to include the sign-off of the service branch chiefs of the Army, Navy, Marine Corps and Air Force.

As to his boss, Hammill added that Pelosi ”strongly opposes the DADT language in the DOD Authorization bill but believes the provisions concerning DADT repeal will be removed in conference.”

But – again looking to 2010 – playing an “expectations game” with the NDAA is a very uncertain game. Then, in the Senate, Republicans twice blocked consideration of the NDAA – once in September and once during the lame-duck session of Congress in December. The NDAA was only approved once the DADT language was removed, although a standalone DADT-repeal bill was passed as well.

As to the marriage amendments, the first, proposed by Rep. Vicky Hartzler (R-Mo.), ”reaffirms the policy of section 3 of the Defense of Marriage Act.” The amendment – made applicable to the NDAA by referencing Department of Defense rules, regulations and employees – also repeats Section 3’s policy of defining “marriage” and “spouse” as relating only to opposite-sex marriages.

The second, offered by Rep. Todd Akin (R-Mo.), expands upon the current restrictions of DOMA by effectively banning same-sex marriages from being performed at military bases or by military employees. Akin’s amendment prohibits weddings from taking place on military installations, such as bases, or other Defense Department property if they don’t comply with DOMA. It also prohibits chaplains or other Defense employees from performing non-DOMA-compliant marriages while “acting in an official capacity.”

Of these amendments, Hammill noted, ”Leader Pelosi voted against DOMA when it was passed during the Clinton Administration and has long voiced her strong support for its repeal.” Hammill also looked to the White House as a backstop, saying of Pelosi, ”If these provisions remain intact and are an obstacle to DADT repeal implementation, she believes President Obama should veto the legislation.”

At this time, though, the White House – while noting it ”strongly objects” to all three provisions – has held back from threatening to veto the NDAA if it contains any of the provisions.

Despite Hammill’s defense, and regardless of the hopes and expectations that the language will not become law, the House vote is a recorded vote. On May 26, the House voted for a bill that stated, “Congress reaffirms the policy of Section 3 of the Defense of Marriage Act, codified as section 7 of title 1, United States Code.”

Hartzler was unsuccessful at picking up Democratic support when she sponsored a resolution that “condemns” President Barack Obama’s administration for stopping its defense of Section 3 of DOMA. But, taking advantage of Democrats’ concerns about voting “no” on the NDAA, Hartzler succeeded in getting a majority of the House Democratic caucus – including the minority leader – to reaffirm that section on May 26.

Although the Senate may take action that will prevent this from becoming law, the vote was a victory for opponents of LGBT equality that could appear in political venues and in future lawsuits challenging DOMA. The lawyers for the House’s Bipartisan Legal Advisory Group (BLAG), which is currently defending Section 3 of DOMA in several challenges, could point to this vote as a House reaffirmation of the federal definition of marriage contained in that section of DOMA.

The vote also happened without the Human Rights Campaign offering any official statement criticizing NDAA passage. HRC officials only pointed to a blog post when asked if they had issued a release. That post contains no criticism of Democrats who voted for the bill, referring instead only to the fact that the bill had been “passed through the Republican-led House.”

Asked if the organizations had made any effort to get House Democrats to vote against the full NDAA, once the DADT and DOMA amendments were added in committee, none of the organizations responded that they had. Both SLDN and SU stated affirmatively that they made a strategic decision to focus on the Senate, while HRC declined any on-the-record comment.

Calling the full House consideration of the NDAA a ”lost cause that was not realistically worth our limited time and resources,” SU Executive Director Alex Nicholson wrote, ”The House simply wasn’t the most strategic place to fight this battle by far.”

SLDN spokesman Zeke Stokes echoed Nicholson’s comments, saying, ”SLDN decided to focus on the Senate, where we believe we are better positioned to address the Hunter amendment, as well as others.”

While the decision by the groups not to lobby on the NDAA spared House Democrats from being forced to choose between the defense bill and a publicized LGBT organizational position, none of the organizations said that angle was included in their rationales.

Whatever the reasoning, the contrast remains: Republicans opposed to LGBT equality voted against the NDAA in 2010 because it contained a pro-LGBT provision. A majority of House Democrats, on the other hand, many of whom otherwise support LGBT equality, voted for the NDAA on May 26 despite it containing anti-LGBT provisions – with no public repercussions from LGBT groups.